National Labor Relations Board v. Walter E. Heyman, D/B/A Stanwood Thriftmart

541 F.2d 796 92 L.R.R.M. (BNA) 3603 , 79 Lab.Cas. P 11,550 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Walter E. HEYMAN, d/b/a Stanwood Thriftmart, Respondent. No. 75-1958. United States Court of Appeals, Ninth Circuit. July 21, 1976. Paul J. Spielberg, Atty. (argued) of The National Labor Relations Board, Washington, D.C. for petitioner. Eugene R. Nielson, of Gordon, Thomas, Honeywell, Malanca, Peterson, O'Hern & Johnson, Tacoma, Wash. (no appearance), and Russell Reid, of Seattle, Wash. (no appearance), for respondent. 1 Before WALLACE and KENNEDY, Circuit Judges, and BOHANON, * District Judge. BOHANON, District Judge: 2 The National Labor Relations Board seeks enforcement of its order, 1 the Board having found Thriftmart to have engaged in unfair labor practices prohibited by § 8(a)(5) of the National Labor Relations Act, as amended. 2 There are no factual disputes, credibility resolutions or other such matters involved in the instant application. The crux of the matter is what effect the Board must give a United States District Court judgment which is antithetical to the Board's subsequent determination regarding the validity of a collective bargaining agreement.…

(concurring).

The union did not appeal the district court’s judgment under section 301 ordering rescission of the collective bargaining agreement. The validity of a collective bargaining agreement is a question which both the district court and the Labor Board may have concurrent jurisdiction to decide. Here the Board refused to give any weight at all to the district court’s decision, claiming that its own determinations always take precedence over inconsistent district court decisions. I believe that facts necessarily decided in either forum should be given at least some collateral estoppel effect in subsequent proceedings in the other forum. Thus I concur in our denial of enforcement of the Board’s order.

The National Labor Relations Board seeks enforcement of its order, 1 the Board having found Thriftmart to have engaged in unfair labor practices prohibited by § 8(a)(5) of the National Labor Relations Act, as amended. 2 There are no factual disputes, credibility resolutions or other such matters involved in the instant application. The crux of the matter is what effect the Board must give a United States District Court judgment which is antithetical to the Board’s subsequent determination regarding the validity of a collective bargaining agreement. The continued existence of a contract previously rescinded by the court was a premise of the Board’s findings. The factual context in which the issue arises is as follows:

On July 1, 1971, Teamsters Local 38 and Allied Employers, Inc. signed a collective bargaining agreement which encompassed Allied’s grocery stores and concessions in King and Snohomish Counties of the State of Washington, another signatory to the contract being the respondent Thriftmart. Article I of the agreement executed between Allied and the Union declared that employers authorizing Allied to represent them would continue to be bound by the agreement even though…